The petition for the USA green card of the second preference category (“EB-2), unlike the one of the first preference category (“EB-1” for applicants with outstanding abilities or those who obtain the green card by acquiring business in the U.S.), usually requires a job offer and the U.S. Department of Labor’s Foreign Labor Certification.

As a result, a potential beneficiary must have a potential employer and rely on him for filing a petition on behalf of the company.

It should be noted that Labor Certification process may appear to be extensive, time-taking and costly process for potential employers. For that reason why many employers are hesitant to file petition on behalf of foreign nationals.

An entrepreneur who applies for EB-2 green card can be exempt from the job offer and labor certification if he/she is able to prove that his/her prospective contribution to the U.S. economy is in the interest of the United States (National Interest Waiver, “NIW”).

If you apply for NIW, first you should demonstrate that 1) you are a specialist in the field that requires an advanced degree (Master’s degree or higher) or 2) you have exceptional ability in your area. You should also prove that your exemption from the job offer and labor certification is in the national interest of the United States.

How to obtain NIW?

According to the new requirements, the U.S. Citizenship and Immigration Services may grant NIW if the applicant is able to prove that:

  • the alien’s proposed endeavor is considered to have substantial merit and national importance for the USA on the whole or for a certain region of the USA;
  • the alien is equipped to make his/her endeavor succeed;
  • It would be beneficial to the United States to exempt a foreign national from the requirements of the job offer and labor certification (which otherwise always is required for granting EB-2 green card – through an American employer).

If you are wondering how a foreign national can prove that he/she has the education required for this green card category or he/she actually has exceptional ability in his/her area, so let’s go over them. To be classified by the U.S. Citizenship and Immigration Services as a person whose activities would benefit the country and be in its national interest, the applicant must provide the following documented proof.

How to prove that you have a desirable degree from a college or university?

Requirement 1:
Master’s degree or higher

  • Certified copies of diploma, certificate or similar award obtained in the USA or other country.
  • Copies of an official academic record or supplement to diploma.
  • Official document from the agency involved in the evaluation of foreign diplomas if you awarded a degree outside the USA.
  • If you have only the Bachelor’s degree, letters from your present and /or previous employers documenting at least five years of progressive post-bachelor degree experience.

Requirement 2:
Your degree must pertain to your activities in the USA.

  • The letter from you or your potential employer in the USA describing the job offer.
  • Documents describing your USA company and its business.
  • Copy of your company’s annual report, if any.

How to prove that you have “exceptional ability”

You may be eligible for EB-2 NIW classification if you are able to show exceptional ability in the sciences, art or business. You must meet at least 3 of 6 criteria below.

  1. Were you awarded a diploma, certificate or similar document related to the area of exceptional ability after graduating from university or another education institution?
    Note: a foreign national may be qualified under exceptional ability for EB-2 without any degree, i.e. an advanced degree is not a mandatory requirement for this category.
  2. Do you have at least 10 years of full-time experience in your field?
    • Recommendation letters, on official letter-headed paper and signed by the authorized person, from your present and previous employers to confirm your experience.
    • If available, copies of agreements between you and your present or previous employers to describe your current or fulfilled work.
  3. Do you have a license or certification for particular profession or occupation if such documents are required in your field?
    • Job description and job requirements given by professional associations to show that the professional license or certification is required.
    • Copy of your effective license or certificate.
  4. Have you been paid high wage or other remuneration for services that demonstrates your exceptional ability?
    • Contracts between you and the companies/persons using your product or services.
    • Copies of the Labor agreements wherein your wage is indicated.
    • Copies of payment documents and tax returns containing your wage details.
    • Evidence that you have received other significant forms of compensation for your services, such as some property instead of monetary rewards; part of the gain on sale of the business you organized; other remuneration to your salary that demonstrates your superior compensation as compared to others involved in your field.
    • If you have buit and sold a business, you need to submit documents related to the sale of the company, as well as the reward you received as part of the sale, and the price of the business should be higher than the price of similar companies in your business.
    • Statistical comparison of salaries in the alien’s field of activities.
  5. Are you a member of any professional associations?
    • Copies of your membership cards or certificates.
    • Documents describing purposes, mission and level of this association.
    • An official letter from the professional association confirming your membership.
    • Description the requirements and criteria for membership in the association.
  6. Documents which prove recognition for achievements and significant contribution to your industry or field:
    • Articles in newspapers, magazines, blogs and other media demonstrating your achievements, projects, activities or your product or services;
    • Probative expert letters that describe your achievements and significant contribution to your field.
    • Documents showing how your work is used by others, such as:
      — contracts concluded with the companies applying your services and product;
      — copies of documents demonstrating the licensed technology developed by you and the way it is applied by other users;
      — copies of your patents and documents demonstrating the ways of their use and the reasons for their importance in your field.

How to prove that you would be beneficial to the U.S. economy, culture, education or welfare

Your potential benefit to the USA can be proved by submitting documents showing your previous achievements with explanations of its positive effect on the future success.Here are some evidence to prove your bright future in the USA:

  • documents showing that your previous achievements have already benefited the U.S.;
  • a detailed description how your achievements would benefit and in which sector (national economy, culture, education or welfare of the USA);
  • copies of the awards you received for the achievements and detailed information about the criteria applied for granting the award or recognition;
  • published articles describing your achievements;
  • letters from your present or previous employers documenting your previous experience, describing your achievements and their importance and future benefit to the USA;
  • letters from the experts in your field to prove your achievements and their significance and prospective benefit to the USA from your work.

How to prove that you do not an American employer and it is in the “national interest” of the USA?

Requirement 1:
alien’s endeavor is considered to have substantial merit and national importance

It is necessary to show that the applicant’s work is related to the important national purpose and it is beneficial to the U.S. Your work may be related to a range of areas such as business, entrepreneurialism, technology, science, culture, health or education. The USCIS will evaluate your documents to determine how important the job offered.  Evidence that the alien’s endeavor has the potential to create a significant positive impact on the U.S. economy in the nearest future may be favorable.

However, it is not required, as an endeavor may be beneficial without immediate economic impact. For example, the job related to research and the furtherance of human knowledge may be qualified for NIW even if the achievements do not ensure immediate economic benefits for the United States. It is necessary to explain the importance of the alien’s job and its practical application, and whether it is likely to translate into economic benefits for the United States. What evidence can be provided:

  • a letter from you and/or your company describing the job and its significance;
  • articles or other published media materials about your activities and/or your company’s activities and the significance of such activities;
  • letters from the experts in your field to prove the significance of your job.

Requirement 2:
an alien is well positioned to advance these activities

A foreign national must demonstrate that is able to work in his/her professional field in the USA and achieve success in the process of his/her activities. The factors which are considered by the USCIS include the following:

  • an alien’s education, skills, knowledge and experience in the particular field;
  • plan for future activities;
  • evidence of achieved progress in the work;
  • interest of potential customers, users, investors, or other relevant entities in the USA.

Requirement 3:
it is more beneficially for the USA to waive alien’s Labor Certification than to involve Americans in this activities

Your evidence must demonstrate that you will be more beneficial to the United States and that you differ from your American counterparts by your ability to influence decisions and processes in your field. You should submit a report or a letter to prove that you have previous experience in such achievements. In other words, your documents must clearly demonstrate that your previous successful experience justifies the expectations of future benefit to the national interest of the USA.

To demonstrate that your company/endeavor in the U.S will create jobs for the workers of the U.S. or otherwise improve a country’s welfare is favorable.You may note the following subtle aspects:

  • Labor Certification may not be obtained by a self-employed inventor and for this reason it would be not practical for a foreign national possessing unique knowledge and skills to stay in the USA;
  • even if other qualified workers from the United States are available, the contribution of a foreign national would be more important and significant;
  • the urgent promotion of alien’s activities in the United States and exemption from labor certification would be in the national interest of the United States.

The evidence you can provide:

  • copies of the published articles that refer to you or recognize your achievements (the article may be devoted to you directly, your achievement or the business you were involved in or owned. Such company may be the official developer / investor of the project);
  • copies of grants or other funding you received. You must indicate the grant amount and conditions for receiving the grants;
  • documents showing how your achievements are used by others, such as:
    • contracts concluded with the companies using your company’s product;
    • documents confirming that your company has developed the technology subsequently used by other companies; 
    • patents and licenses granted to you and/or your company demonstrating the ways of their use and the reasons for their importance in your field.

How to understand that the job is in the national interest of the U.S.?

  • Some US government agency is interested in hiring a foreign national.
  • Foreign national employment will improve the U.S. economy.
  • Recognition of a foreign national will improve the U.S. environment and lead to more efficient use of national resources.
  • Recognition of a foreign national will improve wages and working conditions of U.S. workers.
  • Granting green card to a foreign national will provide more affordable housing for young, elderly or poor residents of the United States, thereby improving the welfare of the country.

Examples of professions and activities potentially suitable for the NIW

  • A researcher with the Doctorate degree in the field of medicinal chemistry developing anticancer drugs, as it helps improve the health of millions of people in the United States.
  • A civil engineer working to improve the strength of asphalt, as it improves the infrastructure, safety and transport sector in the USA.
  • A consultant in the field of petroleum engineering, as endeavor in this field increases energy production efficiency in the United States and promote the development of environmentally friendly methods.
  • A geologist studying the reaction of mineral water, as he contributes to the safety of water in the United States.
  • An opera singer, as she/he develops art and contributes to the vocal knowledge.
  • An animator, as he/she contributes to the promotion of American art and design.
  • Web developer, as he/she contributes to the development of unique or useful web content that will be used throughout the country.
  • A doctor in the field of gastroenterology, as he/she contributes to the improvement of diagnostic methods and the treatment of diseases, and the improvement of medical care in the United States.
  • An entrepreneur, as he/she contributes to the economy and creates jobs in the United States.
  • A researcher in the field of economics, as his/her endeavor contributes to US economic growth.
  • A musician, thanks to his/her nationwide performances and the distribution of music through CD sales, as music contributes to the artistic culture of the nation as a whole.

And what is the meaning of all this evidence and numerous documents? Just in a normal situation, in order to obtain a residence permit in the United States through employment, an immigrant needs a reliable and suitable employer who is ready to provide a foreign national with a full-time job in the position corresponding to his/her education level. When he finally finds an employer in the United States who is willing to sponsor and provide a permanent job for a given immigrant, the employer must first carry out an advertising campaign (long and expensive) and make sure that suitable specialists (residents or citizens of America) are not available in the country. Only then, the petition for labor certification of the immigrant may be filed to the US Department of Labor with subsequent submission of documents for obtaining the green card.

If a person provided the necessary evidence from the above list and convinced the U.S. Citizenship and Immigration Services that this foreign national and his type of activity would be in the US national interest, then the immigrant does not need to look for an employer in America, expect labor certification and permission from the Labor Department for submission green card documents.

If you meet the requirements of this category of green card, please contact our company. Our lawyers will assist you with collecting all the documents and letters and prepare convincing case for the U.S. Citizenship and Immigration Services.